Of the many allegations related to Hillary Clinton's emails -- ranging from reasonable to conspiratorial -- the most serious are the findings by two inspectors general that Clinton's private email server contained classified information and a related referral to the FBI concerning a "potential compromise of classified information." While details remain unclear, the alleged presence of classified information on a private email server undoubtedly has legal implications for the controversy -- and places a strain on Clinton's public defense.

Monday, May 4, 2015

On April 20, 2015, the CIA published in the Federal Register a call for comments as part of the decennial review of FOIA exemptions for its operational files under 50 U.S.C. § 3141. The deadline for comments was May 1, 2015. The submitted comments of which I am aware are the following:

Comments submitted during the two previous decennial reviews in 1995 and 2005 are available here courtesy of Government Attic. CIA responses to both previous reviews are available here from Steven Aftergood.

Tuesday, March 10, 2015

[UPDATE: I have changed this to the past tense, given that Clinton has now confirmed that she destroyed all of the other emails]

While there is already more than enough analysis (some very good, some less so) of the Hillary Clinton email controversy, there is a strikingly similar precedent that clearly illustrates what the appropriate - and perhaps even legally required - solution should have been: an independent National Archives review of all of Clinton's emails to determine which were properly considered federal records. That precedent is Henry Kissinger's removal of transcripts of this telephone calls from State Department custody almost 40 years ago (which are - thanks to the National Security Archive - once again involved in litigation).

The similarities are remarkable. As in the current debate over Clinton's emails, Kissinger exercised exclusive custody and control over documentary material created while in public service that contained some combination of personal and official documentation. As in the current situation, one of Kissinger's assistants (Lawrence Eagleburger) reviewed the material and provided a portion (in the form of extracts) to the State Department. And as (apparently) in the current situation (based on the State Department's reflexive defense of Clinton), the State Department was satisfied with what Kissinger provided and argued that it fulfilled the necessary legal requirements. In fact, unlike the current situation (so far as we know), Kissinger obtained approval in advance from the State Department Legal Adviser to remove the documents based on the Legal Adviser's conclusion that the transcripts constituted Kissinger's personal property.

But you know who didn't approve nearly 40 years ago? The Archivist of the United States. Upon learning of the Kissinger transcripts, then Archivist James Rhoads sent this Jan. 4, 1977 letter to Kissinger stating that he believed statutory duties under the Federal Records Act "require that I conduct an inspection" of the transcripts to "verify the conclusions made [by the State Department] and actions taken concerning them" (emphasis added). Rhoads attempted to "enlist" Kissinger's "cooperation in permitting qualified archivists from my staff to be given the opportunity to examine the telephonic transcriptions" in order to "determine whether such materials are, indeed, personal property or whether some portions of them may be Federal records." The Archivist also guaranteed "the protection of any confidential information which these archivists may encounter during their inspection."

On Jan. 18, 1977, Kissinger rebuffed the Archivist by enclosing both a letter Kissinger had written to Congress that reasserted that "Counsel to the Department of State has thoroughly reviewed the applicability of Department of State regulations to these papers, and has advised that under these regulations and other legal authority, the papers are personal" as well as a memo directly from the State Department Legal Advisor arguing that the Archivist's proposed review would be inappropriate for a variety of (creative, but unpersuasive) reasons.

The Archivist was undeterred and sent back this Feb. 11, 1977 letter in response which enclosed this 12-page legal opinion from the General Counsel of the General Services Administration that analyzed, in part, largely the same federal records laws that govern today (as explained below, current law in fact is even stronger) and concluded that the Archivist not only had the legal authority, but the responsibility to conduct an independent review.

In-fighting within the government continued and, as in the current situation, there was an explosion of FOIA litigation which complicated things further. For a brief period of time in 1978, however, a National Archives archivist was allowed to look at a limited sample of the original Kissinger transcripts and the results, although kept quiet, were clear:

Ultimately the debate between the Archivist - who continued to insist upon a full review by the National Archives - and the State Department ended up being resolved by the office that has become famous for its poorly reasoned, "definitive" interpretations of the "law" for the executive branch - the Department of Justice's Office of Legal Counsel. In January 1981, the OLC sided with the State Department and held that the law did not authorize the Archivist to make determinations that have a "binding effect" on agencies on the question of "whether a document constitutes a 'record.'" In short, the OLC concluded that the State Department had the authority to make the ultimate decision about whether the transcripts were personal papers of Kissinger or federal records and the Archivist was kicked to the curb.

As I explained recently, however, last year Congress finally - and rather directly - corrected and repudiated the OLC's erroneous Kissinger opinion by amending the federal records laws to state expressly that the "Archivist's determination whether recorded information, regardless of whether it exists in physical, digital, or electronic form, is a record . . . shall be binding on all Federal agencies." Unlike the other provisions of the same law that specifically relate to the use of private email by agency officials, there is not a problem of retroactivity with this part of the law - a review by the Archivist in order to make determinations about which of Clinton's emails constitute federal records would take place now.

A National Archives review would have been advantageous by providing a solution to the controversy that was more likely to be seen as independent and non-partisan. Unfortunately, views on the importance of the federal records laws seem to vary greatly depending upon whether the "records" at issue are Kissinger's telephone calls, emails of John Yoo, Lois Lerner, or Clinton, or CIA videotapes. They all raise the same question: who gets to decide what is a "record"? The proper answer - especially in high profile cases that threaten accountability and the historical record - is the Archivist.

Indeed, the consistent emphasis in the current debate on law and regulations specifically referencing email largely misses the larger point: emails can be federal records just like hardcopy letters, telephone transcripts or videotapes. The narrative that it was not "technically" illegal for the Secretary of State to send emails from a private address ignores the more important general obligations governing federal records which make clear that concealing (or destroying) or removing federal records from agency custody is not legal and can even be, when there is requisite intent, a criminal act.

Finally, according to one report, the National Archives has already reached out to the State Department "to ensure that all federal records are properly identified and managed in accordance with the Federal Records Act and that controls and procedures are in place to manage records effectively in the future." Clinton's new revelations raise new questions that call out for more aggressive questions.

Friday, January 23, 2015

Sen. Burr's remarkable Jan. 14, 2015 letter to the President demands that copies of the final SSCI report already distributed throughout the Executive Branch "should not be entered into any Executive Branch system of records" and that all copies in the possession of federal agencies should "immediately" be transferred to the SSCI. At best, these demands are based on a simplistic interpretation of the law. At worst, they constitute a demand by a Senator that federal employees unlawfully remove records from agency custody.

Thus far the analysis has focused on Sen. Burr's transparent motivation to help CIA's tenuous litigation position that the copies are not "agency records" under FOIA case law. Sen. Burr's ham-handed demands, however, simultaneously ignore agency legal obligations to preserve, manage, and maintain agency "records" - as separately definedunder the federal record keeping laws. That is, even if Sen. Burr and CIA were successful in confusing Judge Boasberg enough to hold that agency copies of the SSCI report are not "agency records" under FOIA, it doesn't necessarily mean that the agencies can lawfully surrender them to the SSCI as Sen. Burr is demanding.

First, at least some of the agency copies of the SSCI report should already constitute agency "records" under the federal records laws, which are specifically designed to avoid unsophisticated gimmicks such as Sen. Burr's demand that the report "not be entered into any Executive Branch system of records." The broad definition of a "record" includes "all recorded information . . . received by a Federal agency" that is "preserved or appropriate for preservation." NARA regulations define "preserved" to include "storing" and can expressly cover materials not actually in a filing system. "Appropriate for preservation" also includes material that "should be filed . . . even if the materials are not covered by its current filing or maintenance procedures."

Second, under the federal records laws, each and every copy (or partial copy) whether hardcopy or digital within the Executive Branch could potentially be analyzed separately as a record. See, e.g., 36 C.F.R. § 1222.12 ("Record status of copies . . . Multiple copies of the same document and documents containing duplicative information may each have record status").

Third, to the extent that there is uncertainty about whether copies already in agency custody are records under the federal records laws, neither Sen. Burr nor the Senate Parliamentarian nor Judge Boasberg in the FOIA case nor even the President is the final arbiter. Last November, Congress expressly granted binding legal authority to determine whether something is a record to the Archivist of the United States, who perhaps should get his boots on.

Finally, if the copies of the SSCI report are records under the federal records laws, they may not be removed from agency custody, alienated, destroyed, etc. without authority from the Archivist. Doing so without proper authority violates the law and, under some circumstances, can even constitute a criminal act.

In the end, this will hopefully be moot at least as to the SSCI report. It is difficult to imagine Judge Boasberg won't see through Sen. Burr's/CIA's attempted ruse and he ought to be more offended than persuaded. But in the bigger picture, the situation provides yet more evidence that CIA simply cannot be trusted with its own records. See alsohere, here, here, here.

Thursday, November 13, 2014

With a voice vote in the House agreeing to Senate amendments, Congress has now passed, and is sending to the President, H.R. 1233, the Presidential and Federal Records Act Amendments of 2014, that finally, definitively gives authority to the Archivist of the United States to make determinations about what is, and is not, a "record" that are binding on federal agencies. I'll explain in a second why this section of the bill is important, but here it is in all its glory - frame it and put it on the wall:

Why should you care? If you care about FOIA, accountability, or the historical record, this authority allows the Archivist to close up - or at least tighten up considerably - the horrible loophole in the law that has been manipulated in a long line of cases of government document destruction or alienation -- from the State Department's indefensible decision to allow Henry Kissinger to remove (and treat as his personal property) the transcripts of his official telephone calls as the Secretary of State all the way up to the CIA's destruction of the interrogation tapes. This is the same loophole that could legitimately endanger the long-term survival of the CIA's "Panetta Review" and necessitated the actions of the SSCI staff in exfiltrating a copy from the CIA to a Senate vault (as I described at length here - it is not a conspiracy theory), which is further complicated now by fears that new leadership at the SSCI will return the Panetta Review to the exclusive custody of the CIA.

How does the loophole work?

The legal definition of "record" is - and will continue to be (the new bill tweaks it slightly) - broad and expansive and includes all documentary material made or received by an agency that is preserved or "appropriate for preservation." The "appropriate for preservation" language is the Achilles heel, because up until now the authority for making that determination has been left to the agencies (incorrectly in my view, but that's another story). Thus agencies, which as the courts have noted, have a "built-in incentive to dispose of records relating to 'mistakes,'" can simply decide that material such as videotapes depicting the torture of detainees are nevertheless not "appropriate for preservation," ergo they are not records, ergo the federal records laws do not apply to them, ergo the agency can destroy them at its discretion.

With the Kissinger transcripts the debate over who had the authority to decide what documents were "appropriate for preservation" resulted in this 1981 OLC opinion that found that the Archivist [the successor to the GSA in the opinion] "is not authorized to promulgate standards or guidelines that have a binding effect on the agency's determination as to whether a document constitutes a 'record.'" Once the President makes H.R. 1233 a law, the OLC needs to revisit and withdraw that opinion.

NARA itself also bears some blame. When it later promulgated regulations in the early 1990s that were designed to clarify the definition of "record" its proposed regulation had a forceful, if admittedly circular, statement that "appropriate for preservation" meant "documentary materials made or received that should be filed, stored, or otherwise systematically maintained by an agency because of the evidence of agency activities," 55 Fed. Reg. 741 (proposed Jan. 9, 1990) (emphasis added). It gave away the store, however, in the final rule which became "documentary materials made or received which, in the judgment of the agency, should be filed, stored . . ." 36 C.F.R. § 1222.10(b)(6) (emphasis added). Again, once the President makes H.R. 1233 a law, NARA needs to revisit this regulation.

To be clear, the Archivist neither has the funding, nor the personnel, nor the appetite to look over the shoulder of every federal employee to micromanage whether each email is, or is not, a record, but this bill, once signed by the President, will give the Archivist an important power that should not be left to rot on the vine.

I propose that the Archivist's first use of this power should be to send a letter to the CIA stating that the Archivist has made a binding determination that the CIA documents collectively referred to as the "Panetta Review" are permanent federal records that can never be destroyed.